“Proposition 8” issue now ready (FURTHER UPDATED)

FURTHER UPDATED Monday 6:31 p.m. The petition to withdraw the San Diego County clerk ‘s challenge is now posted on the state court docket. It is here.

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UPDATED Monday 12:01 p.m. The San Diego County clerk’s press release, referred to below, can be read here.

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With the planned withdrawal of one of the two attempts to stop same-sex marriages in California, the stage is now set for the California Supreme Court to act on the issue. California news outlets reported Saturday that San Diego County Clerk Ernest Dronenburg had announced on Friday that he was withdrawing his separate challenge to the issuance of marriage licenses across the state. That withdrawal has not yet been recorded on the state court’s docket, but presumably will be early next week.

The first attempt to revive the “Proposition 8” ban on same-sex marriages was filed by the sponsors of that ballot measure, and that remains pending. The briefing on the merits of that challenge was completed last Thursday. The final briefs have not yet been filed on Dronenburg’s separate challenge. With that off the state court’s docket, the court presumably could act at any time. Earlier, it had refused an emergency request in both cases for a temporary postponement of licensing gays and lesbians to wed.

Dronenburg was quoted in California media as saying: “Because I am dropping my action, the California Supreme Court can start tomorrow in making a decision in the lead case.” He said that, in any event, his case covered the same ground as that of the measure’s sponsors, and said it was important for the challenge to be resolved promptly. Both challenges made the argument that the federal court decision in 2010 striking down “Proposition 8” applied only to the two same-sex couples who had sued to overturn it, and that county clerks had no authority to refuse to continue enforcing the ballot measure’s ban on same-sex marriages for anyone else who applied.

State officials have argued strenuously that the federal judge’s ruling was intended to, and does, apply everywhere in the state’s fifty-eight counties. State officials have issued explicit orders to the fifty-eight county clerks to issue licenses to same-sex couples who otherwise qualify to be married.

The dispute in California has unfolded in the wake of the U.S. Supreme Court’s decision in late June in the case of Hollingsworth v. Perry, declaring that the ballot measure’s sponsors had no legal right to be in court to defend the measure’s constitutionality. After that ruling, the Ninth Circuit Court lifted an earlier delaying order in the federal case, and same-sex marriages began in a number of counties. The Supreme Court said nothing about the constitutionality of “Proposition 8” but the ruling had the effect of making final the 2010 decision by U.S. District Judge Vaughn R. Walker nullifying the measure.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.